Civil Aviation Authority Issues Regulatory Enforcement Policy

The CAA has just issued its first Regulatory Enforcement Policy, a six-page document explaining how it will approach its enforcement activities, including the three principles which it intends will characterise its approach:

- the use of a proportionate and risk-based approach;- independent, evidence-based decisions; and- publication of enforcement action where publication is in the interest of the consumer or the public.

The focus of the policy is on ensuring that enforcement action is carried out and resourced in such a way as to address areas of greatest harm to consumers or the public. That enforcement action should both encourage compliance and deter non-compliance.

The Policy outlines the range of enforcement options available to the CAA, ranging from advice and verbal warnings, to criminal enforcement, no-fly directions and licence suspension. Interestingly, the CAA expressly states in its Policy that the risk of challenge will not deter it from pursuing a course of action which it believes is lawful and will benefit consumers or the public, and in particular where enforcement action may test important areas of uncertainty or ambiguity. Regulators often do consider the risk of challenge when considering enforcement action, so the CAA’s stated position is something of a departure from the norm. It will be interesting to see how it puts that element of its Policy into practice.

The Policy will eventually apply to all areas of the CAA’s regulatory activities, although its introduction will be phased. It will only apply to specific regulatory activities once the CAA has published more detailed guidance explaining how it will apply the policy in that area. It will publish the guidance gradually over the next nine months, starting with its guidance on consumer enforcement, which it published with the Policy, followed by guidance on enforcement of the CAA’s safety regulation and ATOL activities in December 2012, and then on economic regulation activity in June 2013.

Each set of guidance will set out the CAA’s prioritisation principles in a particular area. These are the factors that it will consider when deciding whether to take action. In the consumer enforcement guidance these priorities are:

- impact – the impact of the intervention on consumers;- importance – the seriousness of the issue;- risks – the risks of taking/not taking action; and- resources – the level and cost of resources required in order to take action.

It also sets out in the consumer enforcement guidance three examples of how enforcement works in practice and the types of action that it might take.

The regulatory role of the CAA is likely to change in the coming months, with the Civil Aviation Bill currently passing through Parliament. It provides in particular for reform of the economic regulation of airports, with the introduction of a new licensing regime, and also for the CAA to be given additional powers to enforce competition law. It currently has concurrent powers with the Office of Fair Trading to enforce competition law in respect of air traffic control, but will also have competition powers in respect of airport operation services if the Bill is passed. The new Policy will undoubtedly be intended to apply to its new powers, as well as those already in force.